respondent went to South Korea to pursue her Ph.D. I
F.A. No. 153/2013.

5

went to South Korea in the year 2010-11 two times to

meet the respondent and lived there. In July 2011 the

respondent went to USA and I also went there. My sister

was also pursuing her Ph.D. at USA, the respondent

misbehaved with me and levelled baseless allegations

against my sister. Since 2011, the respondent did not try to

contact me and there is no contact between me and

respondent.

7. Father of the appellant PW/2 deposed that the

appellant used to made complaint about the behavior of

the respondent, however, I advised him to solve problems

I also contacted the father of the respondent and informed

him that behavior of the respondent is not proper.

8. PW/3 Janvi Sharma the sister of the appellant also

stated that the respondent levelled allegation that her

brother had relationship with other lady. In the year 2011

when I went for Ph.D. at USA at that time respondent and

appellant both came to meet me, however, the respondent

levelled allegations against me at New York and other

places and her behavior was cruel.

9. The respondent examined only herself to

substantiate her claim. She pleaded that she wants to live

with the appellant as wife she does not want divorce

because it is not proper. The appellant encouraged me for
F.A. No. 153/2013.

6

higher education and with his inspiration I went to South

Korea and USA for Ph.D. and he used to come there. She

denied the allegation that she had made any allegation

about sister of the appellant Janvi. She further denied the

allegation that she had done any illegal act or incidence as

levelled by the appellant. She admitted the fact that during

her residence at South Korea, the appellant made

complaint about my behaviour and my father made inquiry

about the same from me. I denied the same but my father

advised me that we have to resolve our disputes.

10. During the pendency of the appeal, the respondent

was served when she was in Germany. Number of efforts

have been made to serve the respondent. She did not

engage any lawyer to contest the case. It is a fact that

from 2011 she did not contact the appellant to resolve the

disputes and whereabouts of the respondent at present

are not known, it appears that the respondent has lost her

interest to pursue the case because even after receiving

summons from this Court, she did not send any

communication to the Court or written reply to memo of

appeal filed by the appellant.

11. The Apex Court in the case of Samar Ghosh Vs.

Jaya Ghosh (2007) 4 SCC 511 has held as under in

regard to mental cruelty which is a ground of divorce
F.A. No. 153/2013.

7

under Section 13(1)(i)(i-a) of the Hindu Marriage Act:-

“No uniform standard can ever be laid down for
guidance, yet we deem it appropriate to enumerate
some instances of human behaviour which may be
relevant in dealing with the cases of ‘mental cruelty’.
The instances indicated in the succeeding paragraphs
are only illustrative and not exhaustive.

(i) On consideration of complete matrimonial
life of the parties, acute mental pain, agony
and suffering as would not make possible for
the parties to live with each other could
come within the broad parameters of mental
cruelty.

(ii) On comprehensive appraisal of the entire
matrimonial life of the parties, it becomes
abundantly clear that situation is such that
the wronged party cannot reasonably be
asked to put up with such conduct and
continue to live with other party.

(iii) Mere coldness or lack of affection cannot
amount to cruelty, frequent rudeness of
language, petulance of manner, indifference
and neglect may reach such a degree that it
makes the married life for the other spouse
absolutely intolerable.

(iv) Mental cruelty is a state of mind. The
feeling of deep anguish, disappointment,
frustration in one spouse caused by the
conduct of other for a long time may lead to
mental cruelty.

(v) A sustained course of abusive and
humiliating treatment calculated to torture,
discommode or render miserable life of the
spouse.

(vi) Sustained unjustifiable conduct and
behaviour of one spouse actually affecting
physical and mental health of the other
spouse. The treatment complained of and
the resultant danger or apprehension must
be very grave, substantial and weighty.

(viii) The conduct must be much more than
jealousy, selfishness, possessiveness, which
causes unhappiness and dissatisfaction and
emotional upset may not be a ground for
grant of divorce on the ground of mental
cruelty.

(ix) Mere trivial irritations, quarrels, normal
wear and tear of the married life which
happens in day to day life would not be
adequate for grant of divorce on the ground
of mental cruelty.

(x) The married life should be reviewed as a
whole and a few isolated instances over a
period of years will not amount to cruelty.
The ill-conduct must be persistent for a fairly
lengthy period, where the relationship has
deteriorated to an extent that because of the
acts and behaviour of a spouse, the wronged
party finds it extremely difficult to live with
the other party any longer, may amount to
mental cruelty.

(xi) If a husband submits himself for an
operation of sterilization without medical
reasons and without the consent or
knowledge of his wife and similarly if the
wife undergoes vasectomy or abortion
without medical reason or without the
consent or knowledge of her husband, such
an act of the spouse may lead to mental
cruelty.

(xii) Unilateral decision of refusal to have
intercourse for considerable period without
there being any physical incapacity or valid
reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or
wife after marriage not to have child from
the marriage may amount to cruelty.

(xiv) Where there has been a long period of
continuous separation, it may fairly be
concluded that the matrimonial bond is
beyond repair. The marriage becomes a
fiction though supported by a legal tie. By
refusing to sever that tie, the law in such
cases, does not serve the sanctity of
marriage; on the contrary, it shows scant
F.A. No. 153/2013.

9

regard for the feelings and emotions of the
parties. In such like situations, it may lead to
mental cruelty. ”

“Under the breakdown theory, divorce should be
seen as a solution and an escape route out of a
difficult situation. Such divorce is unconcerned
with the wrongs of the past, but is concerned with
bringing the parties and the children to terms with
the new situation and developments by working
out the most satisfactory basis upon which they
may regulate their relationship in the changed
circumstances. Once the parties have separated
and the separation has continued for a sufficient
length of time and one of them has presented a
petition for divorce, it can well be presumed that
the marriage has broken down. The court, no
doubt, should seriously make an endeavour to
reconcile the parties; yet, if it is found that the
breakdown is irreparable, then divorce should not
be withheld. The consequences of preservation in
law of the unworkable marriage which has long
ceased to be effective are bound to be a source of
greater misery for the parties. ”

The Apex Court further in the case of Suman Kapur

Vs. Sudhir Kapur (2009) 1 SCC 422 has held as under

in regard to mental cruelty:-

“30. The concept of cruelty has been dealt with in
Halsbury’s Laws of England [Vol.13, 4th Edition Para
1269] as under;

“The general rule in all cases of cruelty is
that the entire matrimonial relationship
must be considered, and that rule is of
special value when the cruelty consists not
of violent acts but of injurious reproaches,
complaints, accusations or taunts. In
cases where no violence is averred, it is
undesirable to consider judicial
pronouncements with a view to creating
certain categories of acts or conduct as
having or lacking the nature or quality
which renders them capable or incapable
in all circumstances of amounting to
cruelty; for it is the effect of the conduct
rather than its nature which is of
F.A. No. 153/2013.

10

paramount importance in assessing a
complaint of cruelty. Whether one spouse
has been guilty of cruelty to the other is
essentially a question of fact and
previously decided cases have little, if any,
value. The court should bear in mind the
physical and mental condition of the
parties as well as their social status, and
should consider the impact of the
personality and conduct of one spouse on
the mind of the other, weighing all
incidents and quarrels between the
spouses from that point of view; further,
the conduct alleged must be examined in
the light of the complainant’s capacity for
endurance and the extent to which that
capacity is known to the other spouse”.

“No one has ever attempted to give a
comprehensive definition of cruelty and I
do not intend to try to do so. Much must
depend on the knowledge and intention of
the respondent, on the nature of his (or
her) conduct, and on the character and
physical or mental weakness of the
spouses, and probably no general
statement is equally applicable in all cases
except the requirement that the party
seeking relief must show actual or
probable injury to life, limb or health”.

32. Lord Pearce also made similar observations;

“It is impossible to give a comprehensive
definition of cruelty, but when
reprehensible conduct or departure from
normal standards of conjugal kindness
causes injury to health or an apprehension
of it, is, I think, cruelty if a reasonable
person, after taking due account of the
temperament and all the other particular
circumstances would considered that the
conduct complained of is such that this
spouse should not be called on to endure
it”. [see also Russell v. Russell, (1897) AC
395 : (1895-99) All ER Rep 1].

F.A. No. 153/2013.

11

33. The test of cruelty has been laid down by this
court in the leading case of N.G. Dastane v. S.
Dastane, (1975)2 SCC 326 thus:

“The enquiry therefore has to be whether
the conduct charges as cruelty is of such a
character as to cause in the mind of the
petitioner a reasonable apprehension that
it will be harmful or injurious for him to
live with the respondent….”

34. In Sirajmohmedkhan Janmohamadkhan v.
Haizunnisa Yasinkhan Anr., (1981) 4 SCC 250, this
Court stated that the concept of legal cruelty
changes according to the changes and advancement
of social concept and standards of living. It was
further stated that to establish legal cruelty, it is not
necessary that physical violence should be used.
Continuous cessation of marital intercourse or total
indifference on the part of the husband towards
marital obligations would lead to legal cruelty.

35. In Shobha Rani v. Madhukar Reddi, (1988) 1 SCC
105, this Court examined the concept of cruelty. It
was observed that the term `cruelty’ has not been
defined in the Hindu Marriage Act. It has been used
in Section 13(1)(ia) of the Act in the context of
human conduct and behavior in relation to or in
respect of matrimonial duties or obligations. It is a
course of conduct of one spouse which adversely
affects the other spouse. The cruelty may be mental
or physical, intentional or unintentional. If it is
physical, it is a question of degree which is relevant.
If it is mental, the enquiry must begin as to the
nature of the cruel treatment and then as to the
impact of such treatment on the mind of the other
spouse. Whether it caused reasonable apprehension
that it would be harmful or injurious to live with the
other, ultimately, is a matter of inference to be
drawn by taking into account the nature of the
conduct and its effect on the complaining spouse.

36. There may, however, be cases where the
conduct complained of itself is bad enough and per
se unlawful or illegal. Then the impact or the
injurious effect on the other spouse need not be
enquired into or considered. In such cases, the
cruelty will be established if the conduct itself is
proved or admitted. The absence of intention should
not make any difference in the case, if by ordinary
F.A. No. 153/2013.

12

sense in human affairs, the act complained of could
otherwise be regarded as cruelty. Mens rea is not a
necessary element in cruelty. The relief to the party
cannot be denied on the ground that there has been
no deliberate or wilful ill-treatment.

“Mental Cruelty in Section 13(1)(ia) can
broadly be defined as that conduct which
inflicts upon the other party such mental
pain and suffering as would make it not
possible for that party to live with the
other. In other words, mental cruelty must
be of such a nature that the parties
cannot reasonably be expected to live
together. The situation must be such that
the wronged party cannot reasonably be
asked to put up with such unintentional. If
it is physical, it is a question of fact and
degree. If it is mental, the enquiry must
begin as to the nature of the cruel
treatment and then as to the impact of
such treatment on the mind of the spouse.

Whether it caused reasonable
apprehension that it would be harmful or
injurious to live with the other, ultimately,
is a matter of inference to be drawn by
taking into account the nature of the
conduct and its effect on the complaining
spouse. There may, however, be cases
where the conduct complained of itself is
bad enough and per se unlawful or illegal.
Then the impact or the injurious effect on
the other spouse need not be enquired
into or considered. In such cases, the
cruelty will be established if the conduct
itself is proved or admitted. The absence
of intention should not make any
difference in the case, if by ordinary sense
in human affairs, the act complained of
could otherwise be regarded as cruelty.
Intention is not a necessary element in
cruelty. The relief to the party cannot be
denied on the ground that there has been
no deliberate or wilful ill-treatment or
conduct and continue to live with the
other party. It is not necessary to prove
F.A. No. 153/2013.

13

that the mental cruelty is such as to cause
injury to the health of the petitioner. While
arriving at such conclusion, regard must
be had to the social status, educational
level of the parties, the society they move
in, the possibility or otherwise of the
parties ever living together in case they
are already living apart and all other
relevant facts and circumstances which it
is neither possible nor desirable to set out
exhaustively. What is cruelty in one case
may not amount to cruelty in another
case. It is a matter to be determined in
each case having regard to the facts and
circumstances of that case. If it is a case
of accusations and allegations, regard
must also be had to the context in which
they were made”.

“14. Matrimonial matters are matters of
delicate human and emotional
relationship. It demands mutual trust,
regard, respect, love and affection with
sufficient play for reasonable adjustments
with the spouse. The relationship has to
conform to the social norms as well. The
matrimonial conduct has now come to be
governed by statute framed, keeping in
view such norms and changed social
order. It is sought to be controlled in the
interest of the individuals as well as in
broader perspective, for regulating
matrimonial norms for making of a well-
knit, healthy and not a disturbed and
porous society. The institution of marriage
occupies an important place and role to
play in the society, in general. Therefore,
it would not be appropriate to apply any
submission of “irretrievably broken
marriage” as a straitjacket formula for
grant of relief of divorce. This aspect has
to be considered in the background of the
other facts and circumstances of the
case”.

39. Mental cruelty has also been examined by this
F.A. No. 153/2013.

14

Court in Parveen Mehta v. Inderjit Mehta (2002) 5
SCC 706 thus;

“Cruelty for the purpose of Section 13 (1)
(ia) is to be taken as a behavior by one
spouse towards the other, which causes
reasonable apprehension in the mind of
the latter that it is not safe for him or her
to continue the matrimonial relationship
with the other. Mental Cruelty is a state of
mind and feeling with one of the spouses
due to the behavior or behavioral pattern
by the other. Unlike the case of physical
cruelty, mental cruelty is difficult to
establish by direct evidence. It is
necessarily a matter of inference to be
drawn from the facts and circumstances of
the case. A feeling of anguish,
disappointment and frustration in one
spouse caused by the conduct of the other
can only be appreciated on assessing the
attending facts and circumstances in
which the two partners of matrimonial life
have been living. The inference has to be
drawn from the attending facts and
circumstances taken cumulatively. In case
of mental cruelty it will not be a correct
approach to take an instance of
misbehavior in isolation and then pose the
question whether such behavior is
sufficient by itself to cause mental cruelty.
The approach should be to take the
cumulative effect of the facts and
circumstances emerging from the
evidence on record and then draw a fair
inference whether the petitioner in the
divorce petition has been subjected to
mental cruelty due to conduct of the
other.”

“10. The expression “cruelty” has not been
defined in the Act. Cruelty can be physical
or mental. Cruelty which is a ground for
dissolution of marriage may be defined as
wilful and unjustifiable conduct of such
character as to cause danger to life, limb
or health, bodily or mental, or as to give
F.A. No. 153/2013.

15

rise to a reasonable apprehension of such
a danger. The question of mental cruelty
has to be considered in the light of the
norms of marital ties of the particular
society to which the parties belong, their
social values, status, environment in which
they live. Cruelty, as noted above, includes
mental cruelty, which falls within the
purview of a matrimonial wrong. Cruelty
need not be physical. If from the conduct
of the spouse, same is established and/or
an inference can be legitimately drawn
that the treatment of the spouse is such
that it causes an apprehension in the mind
of the other spouse, about his or her
mental welfare then this conduct amounts
to cruelty. In a delicate human relationship
like matrimony, one has to see the
probabilities of the case. The concept
proof beyond the shadow of doubt, is to
be applied to criminal trials and not to civil
matters and certainly not to matters of
such delicate personal relationship as
those of husband and wife. Therefore, one
has to see what are the probabilities in a
case and legal cruelty has to be found out,
not merely as a matter of fact, but as the
effect on the mind of the complainant
spouse because of the acts or omissions
of the other. Cruelty may be physical or
corporeal or may be mental. In physical
cruelty, there can be tangible and direct
evidence, but in the case of mental cruelty
there may not at the same time be direct
evidence. In cases where there is no
direct evidence, Courts are required to
probe into the mental process and mental
effect of incidents that are brought out in
evidence. It is in this view that one has to
consider the evidence in matrimonial
disputes.”

“31. It is settled by a catena of decisions
that mental cruelty can cause even more
serious injury than the physical harm and
create in the mind of the injured appellant
F.A. No. 153/2013.

16

such apprehension as is contemplated in
the section. It is to be determined on
whole facts of the case and the
matrimonial relations between the
spouses. To amount to cruelty, there must
be such willful treatment of the party
which caused suffering in body or mind
either as an actual fact or by way of
apprehension in such a manner as to
render the continued living together of
spouses harmful or injurious having regard
to the circumstances of the case.

32. The word “cruelty” has not been
defined and it has been used in relation to
human conduct or human behaviour. It is
the conduct in relation to or in respect of
matrimonial duties and obligations. It is a
course of conduct and one which is
adversely affecting the other. The cruelty
may be mental or physical, intentional or
unintentional. There may be cases where
the conduct complained of itself is bad
enough and per se unlawful or illegal.
Then the impact or the injurious effect on
the other spouse need not be enquired
into or considered. In such cases, the
cruelty will be established if the conduct
itself is proved or admitted”.

42. It was further stated:

“35. Each case depends on its own facts
and must be judged on these facts. The
concept of cruelty has varied from time to
time, from place to place and from
individual to individual in its application
according to social status of the persons
involved and their economic conditions
and other matters. The question whether
the act complained of was a cruel act is to
be determined from the whole facts and
the matrimonial relations between the
parties. In this connection, the culture,
temperament and status in life and many
other things are the factors which have to
be considered.

36. The legal concept of cruelty which is
not defined by the statute is generally
F.A. No. 153/2013.

17

described as conduct of such character as
to have caused danger to life, limb or
health (bodily and mental) or to give rise
to reasonable apprehension of such
danger. The general rule in all questions of
cruelty is that the whole matrimonial
relations must be considered, that rule is
of a special value when the cruelty
consists not of violent act but of injurious
reproaches, complaints, accusations or
taunts. It may be mental such as
indifference and frigidity towards the wife,
denial of a company to her, hatred and
abhorrence for wife, or physical, like acts
of violence and abstinence from sexual
intercourse without reasonable cause. It
must be proved that one partner in the
marriage however mindless of the
consequences has behaved in a way which
the other spouse could not in the
circumstances be called upon to endure,
and that misconduct has caused injury to
health or a reasonable apprehension of
such injury. There are two sides to be
considered in case of apprehension of
such injury. There are two sides to be
considered in case of cruelty. From the
appellants, ought this appellant to be
called on to endure the conduct? From the
respondent’s side, was this conduct
excusable? The Court has then to decide
whether the sum total of the reprehensible
conduct was cruel. That depends on
whether the cumulative conduct was
sufficiently serious to say that from a
reasonable person’s point of view after a
consideration of any excuse which the
respondent might have in the
circumstances, the conduct is such that
the petitioner ought not be called upon to
endure.”